November 13, 2015 No. 06-15-00006-CV
IN THE COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA, TEXAS

__ __________________ BILLIE MURPHY TREMBLE, SHARON TREMBLE DONALDSON, SELIA TREMBLE SHAWKEY, WILMER FORREST TREMBLE, JR., AND THE ESTATE OF WILMER FORREST TREMBLE, SR., Appellants,
V. LUMINANT MINING COMPANY LLC, ENERGY FUTURE HOLDINGS CORPORATION, AND SUBSIDIARIES, Appellees.

On Appeal from the 4 th District Court Rusk County, Texas Trial Court No. 2013-392

BRIEF OF APPELLEES Jackson, Sjoberg, McCarthy & Townsend, LLP David E. Jackson State Bar No. 10458500 djackson@jacksonsjoberg.com Marc O. Knisely State Bar No. 11614500 mknisely@jacksonsjoberg.com
711 W. 7 th Street Austin, Texas 78701 (512) 472-7600 (512) 225-5565 FAX ATTORNEYS FOR APPELLEES ACCEPTED 06-15-00006-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 11/13/2015 12:05:39 PM DEBBIE AUTREY

CLERK- i - TABLE OF CONTENTS
IDENTITY OF PARTIE S AND COUN SEL ............................................................ ii
INDEX OF AUT HORITIES .................................................................................... iii STATEMENT OF THE CASE .................................................................................. vi
STATEMENT REGARDING ORAL ARGUM ENT .............................................. vii
ISSUES PRESEN TED ........................................................................................... viii
STATEMENT OF FACTS ......................................................................................... 1 SUMMARY OF THE ARGUMENT ....................................................................... 10 ARGUMENT ........................................................................................................... 11 I. The Tremble Descendants lack st anding to bring this appeal ............. 11 II. Mrs. Tremble fails to assert reversible error ....................................... 13 III. Several entities are not proper parties on appeal ................................. 21
CONCLUSION AND PRAYER .............................................................................. 22 CERTIFICATE OF SERVICE ................................................................................. 24 CERTIFICATE OF CO MPLIANCE........................................................................ 24 APPENDIX A Octobe r 8, 2014 Final Judgment (first-phase judgment) APPENDIX B Decembe r 16, 2014 Final Judgment (second-phase judgment)- ii - IDENTITY OF PARTIES AND COUNSEL Defendants/Appellants: Billie Murphy Tremble, Sharon Tremble D onaldson, Selia Tremble Shawkey, and Wilmer Forrest Tremble, Jr., were Defendan ts in the trial court and are Appellants. The foregoing Appellants also named the Esta te of Wilmer Forrest Tremble, Sr., as an Appellant in their Notice of Appeal, CR 184, but the Estate was not a Defendant in the trial court.

Counsel for Defendants/Appellants: The Appellants who were Defendants appear ed pro se in the trial court, and Appellants are pro se in this court.

Plaintiff/Appellees: Luminant Mining Company LLC was the Plain tiff in the trial c ourt and is Appellee in this Court. Appellants also named Energy Future Holdings Corporation and "Subsidiaries" as Appellees in their Noti ce of Appeal, CR 184, but neither Energy Future Holdings Corporation nor Subsidiari es were Plaintiffs in the trial court.

Counsel for Plaintiff/Appellees: David E. Jackson Marc O. Knisely Jackson, Sjoberg, McCarthy & Townsend, LLP 711 W. 7 th Street Austin, Texas 78701 (512) 472-7600 (512) 225-5565 FAX djackson@jacksonsjoberg.com mknisely@jacksonsjoberg.com- iii - INDEX OF AUTHORITIES
Texas Cases
Barstow v. State , 742 S.W.2d 495 (Tex. App. – Aus tin 1987, writ de nied) .................................... 6 Bilbo Freight Lines, Inc. v. State of Texas , 645 S.W.2d 925 (Tex. App. – Austin 1 983, writ dism'd w.o.j.) ................... 13, 21 Browning v. Prostok, 165 S.W.3d 336 (T ex. 2005) .............................................................................. 15 Burbage v. Burbage , 447 S.W.3d 249 (Tex . 2014) .............................................................................. 16 Burkitt v. Broyles , 340 S.W.2d 822 (Tex. Civ. App. – Wa co 1960, writ ref'd n.r.e.) ....................... 17 Cannon v. Hemphill , 7 Tex. 184 (Tex . 1851) ....................................................................................... 17 Champion v. Robinson, 392 S.W.3d 118 (Tex. App. – Texarkana 2012, pet. denied)

....................... 3, 20 Drake v. Chase Bank , No. 02-13-00340-CV, 2014 Tex. App. LEXIS 12572, at *3 (Tex. App. – Fort Worth Nov. 20, 2014, no pet.) ........................................................ 20 Gardner v. Union Bank & Trust Co. of Fort Worth , 176 S.W.2d 789 (Tex. Civ. App. – Fort Worth 1943, no writ) .......................... 19 Goldberg v. Zinn , No. 14-11-01091-CV, 2013 Tex. App. LEXIS 6867, *18 (Tex. App. – Houston [14 th Dist.] 2013, no pet.) ................................................ 15 Griffin v. Wolfe , 610 S.W.2d 466 (Tex . 1980) ........................................................................... 3, 8 Gunn v. Cavanaugh , 391 S.W.2d 723 (Tex . 1965) .............................................................................. 12- iv - Heller v. Heller , 269 S.W. 771 (1 925) ............................................................................................ 6 Henson v. Estate of Bruce L. Crow, 734 S.W.2d 648 (Tex . 1987) .............................................................................. 21 Hershey v. Duncan , No. 13-01-688-CV, 2004 Tex. App. LEXIS 9784, at *8 (Tex. App. – Corpus Christi 2004, pet. de nied) .................................................. 3 Homeowners' Loan Corp. v. Cilley , 125 S.W.2d 313 (Tex. Civ. App. – Amarillo 1939, writ ref'd) ............................. 5 In re B.L.D. , 113 S.W.3d 340 (T ex. 2003) .............................................................................. 16 In re Estate of Velvin , No. 06-13-00028-CV, 2013 Te x. App. LEXIS 12267, *16 (Tex. App. – Texarkan a 2013, no pet. ) ............................................................... 13 In re Lumbermens Mutual Casualty Company , 184 S.W.3d 718 (Tex. 2006, orig . proceeding) .......................................... 12, 21 Lake v. Reid , 252 S.W.2d 978 (Tex. Civ. App. – Texarkana 1952, no writ) .............................. 6 Malone v. Malone , No. 06-10-00083-CV, 2011 Tex. App. LEXIS 98, *10, n. 5 (Tex. App. – Texarkana 201 1, no pet.) ........................................................ 12, 16 Marmion v. Wells , 46 S.W.2d 704 (Tex. Civ. App. – San Ant onio 1952, writ ref'd) .......... 11, 14, 16 Martin v. Dosohs I, Ltd. , 951 S.W.2d 821 (Tex. App. – San Antonio 1997, no pet.) .............................. 16 Miesch v. Anderson , 90 S.W.2d 314 (Tex. Civ. App. – Texarkana 1936, no writ) . .............................. 3 Pain Control Institute, Inc. v. Geico General Insurance Company , 447 S.W.3d 893 (Tex. App. – Dallas 2014, no pe t.) .......................................... 20- v - Peterson v. Fowler , 11 S.W. 534 (Tex . 1889) ..................................................................................... 6 Pfeffer v. Pfeffer, 269 S.W.2d 436 (Tex. Civ. App. – Galv eston 1954, writ re f’d n.r.e.) .............. 12 Snow v. Donelson , 242 S.W.3d 570 (Tex. App. – Waco 2007, no pe t.) ........................................... 14 Thomas v. Southwestern Settle ment & Development Company , 123 S.W.2d 290 (Tex . 1939) ............................................................................... 5 Torrington Company v. Stutzman , 46 S.W.3d 829 (T ex. 2000) ............................................................................... 12 White v. Mitchell , 60 Tex. 164 (Tex. 1883) .................................................................................... 11 Woodhead v. Good , 27 S.W.2d 374 (Tex. Civ. App. – Eastland 1930, no writ) ................................ 15

Rules
T EX
. R. A PP
. P. 42.3(a) ........................................................................................... 22 Tex. R. Civ. P. 760 .................................................................................................... 3 Tex. R. Civ. P. 761 .................................................................................................... 3 Tex. R. Civ. P. 770 .................................................................................................... 3

Other 3 William V. Dorsaneo, III, Texas Litigation Guide § 43.30[3] (2015) .................. 18- vi - STATEMENT OF THE CASE

Nature of the case: Plaintiff/Appellee Luminant Mining Company LLC ("Luminant") brought this su it for partition by sale of a tract of about 33.094 acres of land ("the Property"). CR 5-6. Appellants Billie Murphy Tremble, Sharon Tremble Donaldson, Seli a Tremble Shawkey, and Wilmer Forrest Tremble, Jr., were defendants in the trial court. CR 5. Trial Court: The Honorable J. Clay Gosse tt, Judge Presiding, in the 4 th District Court, Rusk County, Texas Course of Proceedings: In accordance with standard procedure in partition suits, the District Court re ndered two final judgments.Luminant moved for summary judgment on the firstphase partition issues, a nd on October 8, 2014, the District Court signed the first judgment. CR 31, 108; see copy of judgment attached as Appendix A. On December 16, 2014, following a hearing, the District Court signed the second judgment. CR 168; see copy of judgment attached as Appendix B. Trial Court Disposition: In the first judgment, the court (i) decided that Appellants Sharon Tremble D onaldson, Selia Tremble Shawkey, and Wilmer Forrest Tremble, Jr. did not own any interest in the Property; (ii) determined the interests or shares owned by Luminant and Appellant Billie Murphy Tremble; (iii) c oncluded that the Property could not be fairly and equ itably partitioned in kind and thus should be sold; and (i v) appointed a receiver to conduct a sale of the Property. CR 108. No party appealed that judgment. In the second final judgment, the District Court confirmed and approved the sale of the Property to Luminant, which was the highest bidder at above market price. CR 168, 118-19, 123-24.- vii - STATEMENT REGARDING ORAL ARGUMENT Appellants did not request oral argumen t, and Appellees concur that oral argument will not aid this Court's decisional process in this app eal from the District Court's second-phase partition judgment. Th e record is restricted to a clerk's record of about 190 pages, including an unappealed first-phase final judgment and undisputed summary judgment evidence. Th e legal issues are straightforward and readily resolvable under l ong-settled principles and authorities: The first-phase judgment is final in all respects, and it bars three of the four Appellants' attempts to appeal and most of the fourth Appellant's apparent appellate comp laints; and, to the extent the fourth Appellant, Mrs. Trem ble, complains about the second-phase judgment, she failed to preser ve the complaints and the j udgment is patently errorfree. Finally, submission on the briefs will spare the Court and the parties time and

costs.- viii - ISSUES PRESENTED This appeal is from the second of two sequential final judgments in a partition suit in which Luminant Mini ng Company LLC ("Luminant"), Appellee here, was Plaintiff, Appella nts Billie Murphy Tremble, Sharon Tremble Donaldson, Selia Tremble Shawkey, and Wilmer Forre st Tremble, Jr., were Defendants, and Luminant sought partition by sale of a 33. 094-acre tract of land ("the Property"). CR 5-6. In the first-phase final judgmen t, the District Court: (i) decided that Appellants Sharon Tremble Donaldson, Selia Tremble Shawkey, and Wilmer Forrest Tremble, Jr. did not own any intere st in the Property; (ii) determined the interests or shares owned by Luminant a nd Appellant Billie Murphy Tremble; (iii) concluded that the Property could not be fairly and equitably partitioned in kind and thus should be sold; and (iv) appoint ed a receiver to conduct a sale of the Property. CR 108; Appendix A. No party appealed that judgment. In the secondphase final judgment, the District Cour t approved the sale of the Property to Luminant at above market va lue. CR 168; Appendix B. The issues in this appeal are: (1) Whether Appellants Sharon Tr emble Donaldson, Selia Tremble Shawkey, and Wilmer Forrest Tremble, Jr. lack standing to bring this appeal from the second-phase judgment because they own no interest in the Property, as determined in the unappealed first-phase final judgment;- ix - (2) Whether Appellant Billie Murphy Tremble has failed to preserve or establish any reversible error in the seco nd-phase judgment, and more specifically (a) Whether claimed errors are at least largely barred by the unappealed first-phase final judgment and are otherwise entirely barred by Mrs. Tremble’s failure to preserve them in the trial court; but even if further considered (b) Whether a claim of error cannot be asserted under the Uniform Partition of Heirs Property Act because Texas has not enacted a version of that Act; and (c) Whether the District Court di d not commit reversible error by confirming and approving the sale of the Property; and (3) Whether the Estate of Wilmer Forrest Tremble, Sr. cannot be named as an Appellant and Energy Future Holdi ngs Corporation and "Subsidiaries" cannot be named as Appellees because they we re not parties in the trial court.1 STATEMENT OF FACTS This appeal arises from the second of two final judgments in a partition suit brought by Plaintiff/Appellee Luminant Mining Company LLC ("Luminant") and against Defendants/Appellants Billie Murphy Tremble, Sharon Tremble Donaldson, Selia Tremble Shawkey, and W ilmer Forrest Tremble, Jr. ("the Tremble Family"). 1 Billie Murphy Tremble ("Mrs. Tr emble") is the mother of Sharon Tremble Donaldson, Selia Tremble Shawkey, and Wilmer Forrest Tremble, Jr. ("the Tremble Descendants"). CR 56-57. The property at issue is the surface estate (including all coal, lignite, and other near surface minerals, but excluding the oil, gas, and all other liquid a nd gaseous hydrocarbons produced with the oil and gas) in a tract of land in Rusk County containing 33.094 acres ("the Propert y"). CR 5-6. For some time before 2013, Lumina nt and a number of people owned undivided interests as cotenants in the Property. Before Luminant filed the partition suit in November 2013, Luminant had purchased a significant majority of the undivided ownership interest in the Pr operty – about 87 per cent. CR 7. The remainder was attributable to the Tremble Fa mily interest, discussed further below. Id.

1 Title instruments and other documents in the Clerk's Record contain different spellings of "Tremble" – sometimes with an "e" and sometimes "Trimble." This brief adopts the spelling used by the Tremble Family in the District Court and in this Court.- 2 - Among the undivided interests in the Property acquired by Luminant was that owned by Emma Jean Tremble Smith. CR 71, 79, 96-105. Ms. Smith deeded her undivided interest in the Property to Luminant on December 13, 2010. CR 79, 97. Emma Jean Tremble Smith is the sister of Wilmer F. Tremble, Sr., deceased, who in turn was the husband of Mrs. Tremble and the father of the Tremble Descendants. CR 56-57, 70. Luminant filed this suit in District Court on November 26, 2013. CR 5. Partition of real property in Texas ca n be either in-kind or, under certain circumstances, by sale. Luminant plead ed circumstances supporting partition by sale and requested that relief. CR 5-8. When Luminant filed suit, the title information available to Luminant indicated that Wilmer F. Tremble, Sr., husband of Mrs. Tremble and father of the Tremble Descendants, previously had owne d an undivided interest in the Property (about 12.5 percent), but that he was dece ased. CR 7, 33, 56-57, 73-74, 77-78. The available title information further indi cated that Wilmer F. Tremble, Sr. had died intestate and that his undivided in terest in the Property thus was thencurrently owned in equal shares by the Tr emble Descendants, with a one-third life estate interest in his wife, Mrs. Tremble. Id

. Accordingly, Luminant named as De fendants all four members of the Tremble Family, and credited the interest formerly owned by Wilmer F. Tremble,- 3 - Sr. to each of them, respectively, as just stated. CR 5-7. The Tremble Family members each filed answers in which they all claimed to own interests in the Property, without specifying the nature or pe rcentage of their claimed interests, and in which they disputed the percentage interest owned by Luminant. CR 21-24. A partition proceeding is a two-step process, with two final orders or judgments. Griffin v. Wolfe , 610 S.W.2d 466 (Tex. 1980) ("A partition case, unlike other proceedings, has two final judgments a nd the first one is appealable as a final judgment."); Champion v. Robinson , 392 S.W.3d 118, 127 (Tex. App. – Texarkana 2012, pet. denied). "In the first step, th e trial court determines (1) the share or interests of each of the owners; (2) all que stions of law or equity affecting the title to the land; and (3) whether the property is susceptible to partition or is the subject of a sale." Hershey v. Duncan , No. 13-01-688-CV, 2004 Tex. App. LEXIS 9784, at *8 (Tex. App. – Corpus Christi 2004, pet. denied); Champion , 392 S.W.3d at 127; Tex. R. Civ. P. 760, 761, 770. If par tition by sale is orde red, as Luminant requested, the second step is for the court to decide whether to confirm the sale and to order distribution of the sale proceeds. Miesch v. Anderson , 90 S.W.2d 314, 316-17 (Tex. Civ. App. – Texarkana 1936, no writ). Luminant moved for summary judgment on the first-phase partition issues on July 23, 2014. CR 31-50. Luminant sought summary judgment on all of the first-phase partition issues, including the shar e or interest of each of the owners, all- 4 - questions of law or equity affecting title to the Property, and a determination that the Property should be partitioned by sale. Id

. The Tremble Family filed a response to Luminant's motion for summary judgment on the first-phase issues on Augus t 26, 2014. CR 52 -55. The response raised two issues, one explicitly and the ot her implicitly. First, the Tremble Family contended that the December 2010 deed from Emma Jean Tremble Smith (sister of Wilmer F. Tremble, Sr.) to Luminant was fraudulent. Id . Second, the Tremble Family attached to their response a will by Wilmer F. Tremble, Sr. that was unknown to Luminant and that thus alte red the status of undivided ownership among the members of the Tremble Fam ily from that previously understood by Luminant – although the Tremble Family's response was silent about the effect of the will. CR 53, 61-63. Luminant replied as to both issues ra ised by the Tremble Family's summary judgment response. CR 69-105. First, Luminant conclusively refuted both the factual and legal bases for the Tremble Family's contention that the December 2010 Smith to Luminant deed was fraudulent. The Tremble Family argued that the deed was fraudulent because it conveyed or purported to convey to Luminant not only Ms. Smith's interest in the Property, but also 100 percent of the Tremble Family's interest, and because the deed was "concealed from" and made "without knowledge or consent" of the Tr emble Family. CR 52-55, 70.- 5 - The fraud claim was curious in that Lumi nant never contended that the deed from Emma Jean Tremble Smith conveyed th e Tremble Family’s interest in the Property, in addition to Ms. Smith’s interest. Luminant’s partition petition acknowledged the Tremble Family’s interest, distributed among Mrs. Tremble and the Tremble Descendants in accordan ce with Luminant’s then-existing understanding of their respective shares , and Luminant’s motion for summary judgment sought judgment crediting the Tremble Family with those respective shares. CR 7, 33. Nonetheless, Luminant pointed out that , even if Emma Jean Tremble Smith had attempted to convey an interest in the Property beyond what she owned, the Tremble Family would not have been "d efrauded" by the deed, because the deed could legally convey "such inte rest, and only such interest , in the land as the maker of the deed possesses." Thomas v. Southwestern Se ttlement & Development Co. , 123 S.W.2d 290, 297 (Tex. 1939); see also Homeowners' Loan Corp. v. Cilley , 125 S.W.2d 313, 316 (Tex. Civ. App. – Amarillo 1939, writ ref'd) ("[T]he general rule is that one tenant in common cannot by his sole act sell or encumber more than his portion of the common property."). Furtherm ore, Ms. Smith in fact conveyed only, in the deed's words, "all of my undivided in terest" in the Property. CR 71-72, 96. She did not convey or purport to convey a ny interest in the Property greater than that which she owned.- 6 - The Tremble Family also was mistaken in arguing that the deed somehow was rendered "fraudulent," as to them or thei r interest, by virtue of the fact that Ms. Smith did not notify them about her conve yance or obtain their consent to or joinder in the deed. For well over a century, Texas courts have held that a cotenant may convey her inte rest in real property without the consent or knowledge of her

cotenants. Peterson v. Fowler , 11 S.W. 534, 535 (Tex. 1889); Heller v. Heller , 269 S.W. 771, 776 (Tex. 1925) ("As a tenant in common, Mrs. Heller had the right to sell off any particular part of the entire co mmunity estate, just so long as her deed did not injure the rights of the other childr en to secure their part of the estate."); Lake v. Reid , 252 S.W.2d 978, 982 (Tex. Civ. App. – Texarkana 1952, no writ) ("The rule is well known that each co tenant may freely assign or convey his interest in the common property, 'and hi s assignee or vendee at once becomes the owner of the interest conveyed, and as such, as a matter of law, a cotenant with the former cotenants of his vendor, and en titled to all the rights of any cotenant, including the rights of possession and re-sale.'"); Barstow v. State , 742 S.W.2d 495, 508 (Tex. App. – Austin 1987, writ denied ) ("One cotenant may freely convey his interest in the common property as long as he does not prejudice the rights of his cotenants in the premises," citing Peterson v. Fowler and Lake v. Reid ). CR 72-73.- 7 - Finally, neither Luminant nor Emma Jean Tremble Smith "concealed" the deed. Instead, they recorded the deed in public records shortly after its execution. CR 73, 79. As to the second issue raised implic itly by the Tremble Family's summary judgment response – the title implications of Wilmer F. Tremble, Sr.'s will – Luminant first learned of the will's exis tence when it received the response. CR 73-74, 77-78. The will had been probated in Harrison County, but had not been filed in the deed records in Rusk County, where the Property is located. CR 61-63, 77-78. Furthermore, an affidavit of heirsh ip that had been filed in the deed records in Rusk County, and that Luminant had re lied on, stated that Wilmer F. Tremble, Sr. had died intestate. CR 56, 73-74, 77-78. In his will, however, Wilmer F. Trembl e, Sr. bequeathed all of his property, real and personal, to his wife, Mrs. Tr emble. CR 61. The Tremble Family's summary judgment response therefore estab lished that Mrs. Tremble, alone, owned the entire undivided interest in the Propert y previously owned by her husband, and that the Tremble Descendants did not own a ny interest in the Property. CR 61, 73- 74, 77-79. Consequently, Luminant filed a certifie d copy of the will in the Rusk County Deed Records and requested that the judgm ent rendered by the District Court on the first-phase issues conform to the title evidence provided in the Tremble- 8 - Family's summary judgment response. CR 74-75, 77-94. The Tremble Family never questioned or challenged this request or the effect of Mr. Tremble, Sr.’s will on their title, or lack of title, to the Property. The District Court rendered judgment adjudicating the first-phase partition issues on October 8, 2014. CR 108; see copy of judgment attached to this brief as Appendix A. The court adjudged and decr eed that the Tremble Descendants did not own any interest in the Property and thus were not cotenants. CR 108-109. In accordance with the evidence establis hed by the Tremble Family's summary judgment response, the District Court credited Mrs. Trembl e with the entire undivided interest previous ly owned by her husband, Wilmer F. Tremble, Sr. Id

. The District Court also determined that the Property was not susceptible to partition in kind and should be sold, and appointed a receiver to conduct the sale.
CR 108-110. As was stated above, each of the two judgments in a partition suit is a final judgment. Griffin , 610 S.W.2d at 466. The Octobe r 2014 judgment thus was final for appeal purposes when it was signed. The Tremble Family did not seek any post-judgment trial court relief from th e October 2014 judgment, nor did they appeal the judgment. The receiver thereafter advertised the sa le of the Property, solicited offers, and received bids, as directed by the District Court in the first judgment. CR 110,- 9 - 123. Luminant was one of three bidders, a nd its offer was substantially higher than both the other offers and the fair market value established by an unchallenged and undisputed appraisal. CR 49-50, 118-20 , 123-24. The receiver recommended that the District Court confirm and approve th e sale of the Property to Luminant in accordance with Luminant's offe r and contract. CR 124. On December 4, 2014, Luminant move d for judgment confirming the sale of the Property, ordering payment of the sale proceeds to the parties in accordance with their ownership interests in the Property determined by the first-phase judgment, and granting related relief fina lizing the second-phase partition issues. CR 118-21. The Tremble Family did not respond to Luminant's motion or object in any way to the relief requested in the motion. The District Court held a heari ng on Luminant’s unopposed motion for judgment, then rendered judgment finally disposing of all second-phase partition issues, including confirmation of the recei ver's sale of the Property, on December 16, 2014. CR 117, 168-70; see copy of judgment attached to this brief as Appendix B. The Tremble Family did not appear at the hearing in oppos ition to the motion, file any post-judgment motion, or object in any way to the judgmen t, but they filed a notice of appeal from the judgm ent on January 16, 2015. CR 184. In their notice of appeal, the Tremble Family named the Estate of Wilmer Forrest Tremble, Sr. as an Appellant, id. ; neither the Estate no r a representative of- 10 - the Estate was a party in di strict court. The Tremble Family also named Energy Future Holdings Corporation and "Subsi diaries" as Appellees, in addition to Luminant, id. ; neither Energy Future Holdings Co rporation nor any subsidiary was a party in district court. SUMMARY OF THE ARGUMENT The Tremble Family's arguments in this appeal are so succinct and skeletal that they are difficult to ascertain pr ecisely. In accordance with Luminant's understanding of those arguments, and the issues they pose, Luminant responds as follows: (1) The District Court's first-phase judgment determined that the Tremble Descendants – Sharon Tremble Donaldson, Selia Tremble Shawkey, and Wilmer Forrest Tremble, Jr. – did not own any inte rest in the Property. These parties did not appeal that judgment, and the judgme nt became final for all purposes. The Tremble Descendants therefore do not have standing to bring this appeal, which can properly challenge only the second-phase judgment. (2) Billie Murphy Tremble does have st anding to appeal. Her complaints, however, appear to be direct ed largely to the first-pha se judgment and the issues decided by that judgment. Because that judgment became final in all respects, complaints about it are barred. In add ition, Mrs. Tremble never preserved any- 11 - complaint about the second- phase judgment. For these and other reasons, Mrs. Tremble's complaints do not pr esent any reversible error. (3) The Estate of Wilmer Forrest Tr emble, Sr. was not a defendant in the trial court, and Energy Future Holdings Corporation and "Subsidiaries" were not plaintiffs. The Estate therefore is not a proper appellant, and the corporation and its subsidiaries are not proper appellees. ARGUMENT
I. The Tremble Descendants lack standing to bring this appeal. In the first-phase judgment, the Distri ct Court determined that the Tremble Descendants do not own any in terest in the Property. CR 108-109; Appendix A. This determination was based on the evid ence presented by the Tremble Family – the will of Wilmer Forrest Tremble, Sr. – which established that Mrs. Tremble owned all of the interest in the Propert y that previously had been owned by her husband. CR 52-53, 61. No one appealed the first-phase j udgment, and, because partition suits produce two final judgments, the earlie r judgment thus became final for all purposes. For that reason, too, the firs t-phase judgment cannot be challenged in an appeal from the second-phase judgment, and the former judgment "must be held conclusive of the right s of the parties." White v. Mitchell , 60 Tex. 164, 165 (Tex. 1883); Marmion v. Wells , 246 S.W.2d 704, 705 (Tex. Civ. App. – San Antonio- 12 - 1952, writ ref'd) ("It is well settled that upon an appeal from the second or final decree matters determined by the firs t or interlocutory decree cannot be reviewed...."); Pfeffer v. Pfeffer, 269 S.W.2d 436, 438 (Tex. Civ. App. – Galveston 1954, writ ref’d n.r.e.) (unappealed first- phase judgment determ ining interests and ordering sale “was conclusive against the claims of appellants to any interest in the” property, in appeal from second judgment approving sale); Malone v. Malone , No. 06-10-00083-CV, 2011 Tex. App. LEXIS 98, *10, n. 5 (Tex. App. – Texarkana 2011, no pet.). As to the second-phase judgment, the Tremble Descendants essentially have the same status as a non-party, and, gene rally, a non-party cannot exercise the right to appeal. In re Lumbermens Mutual Casualty Co. , 184 S.W.3d 718, 723 (Tex. 2006, orig. proceeding) ("Generally, only pa rties of record may appeal a trial court's judgment."); Gunn v. Cavanaugh , 391 S.W.2d 723, 724 (Tex. 1965) ("The general rule is that the remedy by appeal in the usual form, or by writ of error, is available only to parties of record....") . Furthermore, even if the Tremble Descendants technically remained as pa rties to the suit after the first-phase judgment became final and unappealable, th ey have no standing to complain about the second-phase judgment, which does not aff ect any of their rights or interests. Torrington Co. v. Stutzman , 46 S.W.3d 829, 843 (Tex. 2000) ("Texas courts have long held that an appealing party may not co mplain of errors that do not injuriously- 13 - affect it or that merely affect the rights of others."); In re Estate of Velvin , No. 06- 13-00028-CV, 2013 Tex. App. LEXIS 12267, *16 (Tex. App. – Texarkana 2013, no pet.) ("Demond is not a party to this appeal , lacks a general justiciable interest, and cannot complain about errors which do not injuriously affect him," and, with limited exceptions, he "lacks sta nding to bring an appeal."). Because the Tremble Descendants do not have standing to appeal, their appeal should be dismissed. Bilbo Freight Lines, Inc. v. State of Texas , 645 S.W.2d 925, 927-28 (Tex. App. – Austin 1983, writ dism'd w.o.j.).
II. Mrs. Tremble fails to assert reversible error. Mrs. Tremble's issues include: wh ether she was denied rights under the Uniform Partition of Heirs Property Act (" the Uniform Act") (Issue I); whether the District Court erred by signing the "Final Judgment without an open hearing to consider the evidence" and by "omit[ting] " her "from any of the decision making processes" (Issues II and III); and whether there was "error in the auctioning of [the Property]" (Issue IV). Appellants' Brief, p. 3; for information about the Uniform Act, see www.uniformlaws.org (listed under “Acts” on home page). Mrs. Tremble next makes reference to the Uniform Act, to information about the Property that "was not known to" her, and to "a closed civil trial," and the latter reference appears to be directed at both the fi rst-phase and second-phase judgments. Id . at p. 4.- 14 - Mrs. Tremble's statement of fact s and argument focus exclusively on allegations about Ms. Smith’s deed – the sa me allegations that the Tremble Familymade in their response to Luminant's motion for summary judgment on the firstphase issues. Id . at pp. 4-5. Mrs. Tremble states that Luminant filed suit claiming that it "has 100% ownership claim in [the Tremble Family's] undivided, inherited, heir property," by virtue of the deed from Emma Jean Tremble Smith to Luminant. Id . at p. 5. Mrs. Tremble continues, "Ms. Smith is not nor has she ever been the Executor of the Estate [of Wilmer Forrest Tremble, Sr.], Administrator, nor
Trustee." Id . Finally, Mrs. Tremble argues that she and the Tremble Descendants "by law were not privy to pertin ent information from" Luminant. Id . at p. 6. For several reasons, Mrs. Tremble's complaints fall short. First, the complaints discussed in Mrs. Tremble’s statement of facts and argument are barred because they relate solely to the first- phase issues and judgment. The Tremble Family explicitly argued about the deed from Emma Jean Tremble Smith to Luminant in the first-phase proceedings, and the District Court rejected those arguments in its judgment. "It is well settled that upon an appeal from the second or final decree matters determined by the first or interlocutory decree cannot be reviewed...." Marmion , 246 S.W.2d at 705; Snow v. Donelson , 242 S.W.3d 570, 572-73 (Tex. App. – Waco 2007, no pe t.) (holding that the first judgment determining “the merits of the case” a nd “the rights of the parties” cannot be- 15 - revised “unless upon appeal” from that j udgment, and that, "[b]ecause [Snow’s] complaints challenge matters decided in the first hearing from which Snow did not appeal, we have no jurisdiction to address them now."); Goldberg v. Zinn , No. 14- 11-01091-CV, 2013 Tex. App. LEXIS 6867, *18 (Tex. App. – Houston [14 th Dist.] 2013, no pet.) ("To grant that relief [from the first judgm ent], in an appeal from another and different judgment, would, in effect, be to permit the first judgment to be collaterally attacked," quoting Woodhead v. Good , 27 S.W.2d 374, 376 (Tex. Civ. App. – Eastland 1930, no writ)); see Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005) (“A collateral attack is an attempt to avoid the binding force of a judgment in a proceeding not instituted for th e purpose of correcting, modifying, or vacating the judgment, but in order to obtain some specific relief which the judgment currently stands as a bar against.”). Second, to the extent Mrs. Tremble's issues and arguments can be deemed to attack the second-phase judgment, thos e arguments were not preserved by any request, objection, or motion in the district court. The Supreme Court of Texas has described the threshold for preservation as follows: As a general rule, preservation requi res (1) a timely objection "stating the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context," and (2) a ruling. See T EX
. R. A PP
. P. 33.1. Stated differently, the test ultimately asks "whether th e party made the trial court aware of the complaint, timely and pl ainly, and obtained a ruling." State- 16 - Dep't of Highways & P ub. Transp. v. Payne , 838 S.W.2d 235, 241 (Tex. 1992). Burbage v. Burbage , 447 S.W.3d 249, 257 (Tex. 2014); In re B.L.D. , 113 S.W.3d 340, 349-50 (Tex. 2003) (listing cases and explaining reasons for the requirement that complaints of error must be preserve d in the trial court). Here, Mrs. Tremble did not file any response to Luminant's motion for judgment on the second-phase issues, did not file or make any obj ection or motion during the second-phase proceedings, and did not file any post-j udgment motion. She thus waived any complaint about the judgment fro m which she has appealed. Malone , 2011 Tex. App. LEXIS 98, at *12-13. Third, the District Court did not co mmit any error in rendering the secondphase judgment. As a corollary to the pr inciple that matters decided in the first judgment cannot be reviewed in an appeal from the second, actions taken in the second-phase proceedings that merely follo w the directives and decisions in the first judgment may not be challenged in an appeal from the second. Marmion , 246 S.W.2d at 706 ("[I]f the judgm ent now appealed from mere ly followed that [first] decree, then the error, if error it be, would be in the former, and not in the latter, ruling."); Martin v. Dosohs I, Ltd. , 951 S.W.2d 821, 824 (Tex. App. – San Antonio 1997, no pet.) (quoting Marmion ). The only remaining question in this appeal, therefore, is whether the first judgment's directives and decisions were not correctly followed in the second-phase pr oceedings, causing consequent error in- 17 - the second judgment. Burkitt v. Broyles , 340 S.W.2d 822, 823 (Tex. Civ. App. – Waco 1960, writ ref'd n.r.e.) (the only que stion that could properly arise in the second phase would be conformity to the rules settled by the first decree, citing Cannon v. Hemphill , 7 Tex. 184, 197 (1851)). In the first-phase judgment, the Dist rict Court appointed a receiver to conduct a sale of the Propert y, CR 109, then ordered: It is further ORDERED, ADJU DGED, and DECREED that the receiver shall advertise the sale of the Property, obtain offers for purchase of the Property, enter into a contract for the sale of the Property with the party making the hi ghest offer, which contract shall be subject to the Court's approval, and report the proposed sale to the Court. CR 110. Mrs. Tremble urges an issue about whether the District Court committed "error in the auctioning of undivided inher ited heir property," A ppellants' Brief, p. 3 (Issue IV), but does not elaborate on this issue. The record, however, contains no evidence to support any claim of erro r and, to the contrary, affirmatively establishes that the sale of the Property was performed precisely as the District Court directed in the first-phase judgment and that Mrs. Tremble was awarded more than the fair market value of her undivided interest in the Property. In her sworn Receiver's Report to Cour t, the receiver, Cecilia Koch, attested as follows:- 18 - In accordance with this Court' s October 8, 2014 Judgment, I advertised the sale of the Property. On October 22, 2014, I listed the Property with the Longview and Tyle r area Multiple Listing Services, the Century 21 website, as well as numerous other internet sites and The Henderson Daily News . The listings described the property, solicited offers to be submitted be fore November 22 , 2014, and listed the price at $135,900, which is above the estimated fair market value. By the end of the day on November 22, 2014, I received three offers for purchase of the Property, true and correct copies of which are attached to this Report and labeled "Offer #1," “Offer #2” and “Offer #3.” Offer #1 is the offer and cont ract for purchase of the Property by Luminant Mining Company LLC ("Luminant"), and is the highest and best offer. Luminant has offered to purchase the Property for $149,590, plus my fee a nd costs, the broker's fee, all closing costs, and the costs of court. Offer #2 is for a proposed purchase price of $33,094. Offer #3 is for a proposed purchase price of $49,500. Both Offer #2 and Offer #3 are substa ntially lower than Offer #1. I recommend that the Court approve and confirm the sale of the Property to Luminant in accord ance with Luminant's offer and contract for purchase of the Property, as evidenced by Offer #1. CR 123-24. Luminant's offer and contract to purchase the Property for the sum of $149,590, plus the receiver's fee and costs a nd the costs of court, far exceeded the fair market value of the Property estab lished by an uncontested appraisal, which was $130,000. CR 49-50, 119-20, 123-24. The District Court properly exerci sed its discretion by approving and confirming the sale of the Property in its second-phase judgm ent. CR 168-70; Appendix B. 3 William V. Dorsaneo, III, Texas Litigation Guide § 43.30[3] (2015) (describing procedure for recei ver's sale and sta ting that "[o]n appellate review of a court-ordered sale, inadequacy of the pri ce is not generally a sufficient ground for- 19 - setting the sale aside, in the absence of facts or circumstances showing fraud or irregularity"); Gardner v. Union Bank & Trust Co. of Fort Worth , 176 S.W.2d 789, 793 (Tex. Civ. App. – Fort Worth 1943, no writ) (the determina tion of whether to confirm a receiver's sale is a matter with in the sound discretion of the court, and "[i]t is the settled rule in this state that a receiver's sale will not be set aside for inadequacy of price alone, in the absence of facts and circumstances showing fraud or irregularities; especially is this true un less the inadequacy is so great as to shock the conscience of the court"). Mrs. Tremble also lists issues compla ining that the District Court erred "in the signing of [the] Final Judgment wit hout an open hearing to consider the evidence" and by "omit[ting]" her "from any of the decision making processes," Appellants' Brief, p. 3 (Issues II and III), but again does not elaborate on these issues. As with the issue just discussed, the record contains no evidence supporting these complaints. Lumina nt moved for judgment c onfirming the sale of the Property, and served the motion on Mrs. Tr emble. CR 118-22. On December 3, 2014, the District Court signed an order setting the hearing for December 16, 13 days later, then held the hearing on that date. CR 117. The hearing was open, and Mrs. Tremble was not excluded from the hear ing, but she did not attend and did not otherwise oppose or object to Luminant's motion for judgment, the Receiver's Report to Court, or the District Court's ap proval and confirmation of the sale of the- 20 - Property. Champion v. Robinson , 392 S.W.3d 118, 122, n. 6, 127 (Tex. App. – Texarkana 2012, pet. denied) ("The reco rd does not support Champion's [pro se] claim that he received inad equate notice [of the heari ng on the first-phase partition issues]."). Finally, Mrs. Tremble asserts that sh e was denied rights under the Uniform Act. Appellants' Brief, pp. 3 (Issue I), 4. But Mrs. Tremble does not articulate how she allegedly was denied rights under the Uniform Act with respect to the receiver's actions in the second-phase proc eedings or the District Court's rendition of the second-phase judgment. More si gnificantly, the Texas Legislature has not adopted any form of the Uniform Act, nor has the Uniform Act been otherwise incorporated in or deemed a part of Texa s law. Accordingly, Mrs. Tremble has no ability or authority to claim error under the Uniform Act. See Pain Control Institute, Inc. v. Geico General Insurance Co. , 447 S.W.3d 893, 896-98 (Tex. App. – Dallas 2014, no pet.) (aff irming summary judgment on ground that plaintiff alleged no recognized cause of action); Drake v. Chase Bank , No. 02-13-00340- CV, 2014 Tex. App. LEXIS 12572, at *3 (Tex . App. – Fort Worth Nov. 20, 2014, no pet.) (affirming district court’s judgmen t on ground that plaintiff alleged claim not recognized under Texas law). In short, the District Court's Decem ber 2014 judgment, confirming the sale of the Property, should be affirmed.- 21 - III. Several entities are not proper parties on appeal. The Estate of Wilmer Forrest Tremble, Sr. was not a defendant in the trial court, nor was a represen tative of the Estate. See Henson v. Esta te of Bruce L. Crow, 734 S.W.2d 648, 649 (Tex. 1987) (a decedent’s estate is “not a legal entity” and cannot sue or be sued as such). Th e Tremble Family designated the Estate as an Appellant in their notice of appeal, CR 184, and in their filings in this Court, but there is no legal basis for that designation. "Generally , only parties of record may appeal a trial court's judgment." In re Lumbermens , 184 S.W.3d at 723. The doctrine of virtual representation creates an exception that allows a non-party to intervene on appeal in certain circumstan ces, but none of those circumstances exist here. Id . at 722-29. Energy Future Holdings Corporation an d "Subsidiaries" were not plaintiffs in the trial court, but the Tremble Family designated them as Appellees in their notice of appeal. CR 184. Because Energy Future Holdings Corporation and its subsidiaries were not parties in the trial court and there is no other legal basis for adding them in this appeal, they are not proper Appellees. In re Lumbermens, 184 S.W.3d at 723-24. Since Energy Future Ho ldings Corporation a nd its subsidiaries are not proper Appellees, this Court has no jurisdiction over them in this case. In sum, the Estate’s appeal should be dismissed for lack of standing, Bilbo , 645 S.W.2d at 927-28, and Mrs. Tremble's appeal against Energy Future Holdings- 22 - and its subsidiaries should be dismi ssed for want of jurisdiction. T EX
. R. A PP
. P. 42.3(a). CONCLUSION AND PRAYER The District Court carefully follo wed proper partition procedure. The District Court's first-phase judgment is conclusive of the parties' rights thereby determined, and the Tremble Descendants, who were found to own no interest in the Property, therefore lack standing to bring this appeal. In addition, Mrs. Tremble's complaints are barred by the firs t-phase judgment or are foreclosed by her failure to preserve them. Appellee Luminant Mining Company LL C prays that this Court: dismiss the appeal by Sharon Tremble Donaldson, Selia Tremble Shawkey, Wilmer Forrest Tremble, Jr., and the Estate of Wilmer Fo rrest Tremble, Sr. for lack of standing; dismiss the appeal against Energy Future Holdings Corporation and Subsidiaries for lack of jurisdiction; and, with resp ect to the appeal by Billie Murphy Tremble, affirm the District Court's judgment. Appellee asks for such other and further relief to which it is entitled.- 23 - Respectfully submitted, Jackson, Sjoberg, McCarthy & Townsend, LLP David E. Jackson State Bar No. 10458500 djackson@jacksonsjoberg.com Marc O. Knisely State Bar No. 11614500 mknisely@jacksonsjoberg.com 711 W. 7 th Street Austin, Texas 78701 (512) 472-7600 (512) 225-5565 FAX

By: /s/ David E. Jackson David E. Jackson State Bar No. 10458500 ATTORNEYS FOR APPELLEES LUMINANT MINING COMPANY LLC- 24 - CERTIFICATE OF SERVICE I hereby certify that a true and comp lete copy of the above and foregoing Brief of Appellees was sent via the follo wing method, to the following parties on this the 13 th day of November, 2015. Billie J. Murphy Tremble P. O. Box 541 Marshall, TX 75671 Via regular mail and Certified Mail, RRR 7015 0640 0003 1869 5922 Sharon Tremble Donaldson 2010 Wineberry Dr. Katy, TX 77450 Via regular mail and Certified Mail, RRR 7015 0640 0003 1869 5946
Selia Tremble Shawkey 712 South 37th Street San Diego, CA 92113 Via regular mail and Certified Mail, RRR 7015 0640 0003 1869 5939 Wilmer Forrest Tremble, Jr. P. O. Box 841865 Pearland, TX 77584 Via regular mail and Certified Mail, RRR 7015 0640 0003 1869 5953

/s/ David E. Jackson David E. Jackson
CERTIFICATE OF COMPLIANCE As required by Texas Rule of Appellate Procedure 9.4 (i)(3), I certify that this brief contains 5263 words, excluding the parts of the brief exempted by Rule 9.4 (i)(1).

/s/ David E. Jackson David E. Jackson